Court of Justice disapproves reform of Polish Supreme Court

On Monday 24 June 2019, the Grand Chamber of the Court of Justice of the European Union (‘the Court’) delivered its judgment on the new retirement law for the Polish Supreme Court (ECLI:EU:C:2019:531). It declared that the Republic of Polandhas failed to fulfil its obligations under EU law.

Niek van de Pasch

Provisions and procedure

The retirement age for Polish Supreme Court judges was lowered to 65, under a law that entered into force on 3 April 2018. This new age limit applies as from that date, and includes judges appointed before. Continued service untill the age of 71 depends on a discretionary authorisation by the Polish president.

The European Commission brought an action before the Court on 2 October 2018, arguing that Poland has infringed EU law. By order of 15 November 2018, the President of the Court granted the Commission’s request for an expedited procedure. The Court delivered its final judgment on 24 June 2019.

Lowering of retirement age

The Court starts off with its established legal framework. The Treaty on European Union (‘TEU’) requires that member states shall provide remedies sufficient to ensure effective legal protection in the fields covered by EU law. The Charter of Fundamental Rights connects this effective remedy to an independent and impartial tribunal. Referring to its recent body of case law (in particular ASJP, L.M. and Achmea), the Court reiterates that judicial independence is of the essence for this fundamental right. Therefore, it reviews the Polish rules in light of this context.

Part and parcel of judicial independence is the principle of irremovability. Exceptions to this principle must be warranted by legitimate and compelling grounds. Following this roadmap, the Court sifts out the true aims of the contested reform, thus appraising the legitimacy of the motives involved.

Firstly, it observes that the explanatory memorandum to the draft law raises serious doubts about the objectives pursued. Like the Venice Commission in its Opinion of 11 December 2017 on this subject, the Court suspects an intent of side-lining a certain set of judges.

Secondly, the law provides for the forecited implementation of a new mechanism allowing the president to extend the thus-shortened tenure. A categorical reduction of five years followed by a discretionary extension of six years is suspicious in and of itself. This combination of measures reinforces the Court’s impression that in fact the end might be to exclude a pre-determined group.

Thirdly, the practical consequences are notably far-reaching. The lowering of the retirement age immediately affects nearly a third of the serving members of the Supreme Court, heedlessly reducing the constitutionally guaranteed mandate of its president. Agreeingly citing its Advocate General Evgeni Tanchev, the Court notes that such a major restructuring of the composition of a court may itself call into question the nature of a bill.

Having regard to these considerations, the Court holds that the lowering of the retirement age of sitting judges is not justified by a legitimate objective. Accordingly, that application undermines the principle of irremovability, which is essential to judicial independence. Polandtherefore breaches the second subparagraph of Article 19(1) TEU.

Presidential extension

As mentioned above, the Polish president may extent judicial careers beyond the new retirement age. The competence to grant such prolongation twice for a three year term, means some judges are able to continue their service between the ages of 66 and 71.

The mere fact that a president is entrusted with this power is not sufficient to conclude that the principle of judicial independence has been undermined. However, the Court stresses the importance of substantive conditions and detailed procedures governing the adoption of such decisions. Only strict material and formal rules can prevent reasonable doubts in the minds of individuals as to the neutrality of presidentially designated judges.

The impugned Polish law does not satisfy those safeguarding requirements either. The new-made mandate is not governed by any objective and verifiable criterion, the president is not obliged to state any reasons, and the decision cannot be challenged in court proceedings.

While the mandatory consultation of the National Council of the Judiciary in theory makes this process more objective, the Court is particularly skeptical of the daily reality. The council has merely delivered opinions without meaningful justification, simply making general reference to legislative terms or not explaining its reasoning at all. Explicitly leaving open the question whether the applicable Polish criteria are sufficiently transparent, objective and verifiable in the first place, the Court concludes this intervention is not apt to provide the president with any necessary information.

The discretion held by the president in renewing the tenure of judges therefore breaches the second subparagraph of Article 19(1) TEU as well. Hence, the Court declares that both elements of the Polish reform violate EU law.